In the latest challenge to the Obama administration’s intensifying regulatory actions, a coalition of free-market and conservative organizations is calling on state governments to resist the Environmental Protection Agency’s Clean Power Plan.

In a December letter to state legislators, attorneys general, and governors, the coalition’s 37 organizations blasted EPA’s attempt to “coerce states into adopting expensive, destructive, and unlawful regulations, possibly including cap and trade, on greenhouse gas emissions—under the threat of even more draconian federal regulations.”

“When Congress enacted and amended the Clean Air Act, it did not authorize EPA to restructure state electricity policies,” the coalition wrote. “If at any time in the past six years, a senator or a congressman had introduced the CPP’s emissions-reduction requirements, the bill would have been dead on arrival.”

Among the organizations signing the letter are 60 Plus Association, American Energy Alliance, American Family Association, Committee for a Constructive Tomorrow, Competitive Enterprise Institute, Energy & Environment Legal Institute, Maryland Taxpayers Association, National Center for Public Policy Research, National Taxpayers Union, Rule of Law Institute, and The Heartland Institute, which publishes Environment & Climate News.

Sidestepping Congress

The letter points out the Obama administration was unable to get Congress to enact a cap-and-trade plan covering greenhouse-gas emissions. Absent legislation, the administration is seeking to curb greenhouse-gas emissions (referred to as “carbon pollution”) administratively by issuing new regulations under the Clean Air Act.

On June 2, 2014, EPA unveiled its Clean Power Plan (CPP). Under the CPP, the nation’s existing power plants are required to cut CO2 emissions by 30 percent from 2005 levels by 2030.

The CPP designates the states as the instrument to carry out EPA’s mandates, with the agency setting a CO2 emission target for each state. The states are then required to enact laws to meet the targets, subject to EPA approval.

To meet the targets, states may employ EPA-approved options such as: renewable energy mandates, increased energy efficiency standards for homes and appliances, and instituting carbon taxes or a cap-and-trade regime.

On its website, EPA justifies the CPP by claiming, “Our climate is changing, and we’re feeling the dangerous and costly effects right now.” The agency goes on to assert average temperatures “have risen in most states since 1901” and climate and weather disasters in 2012 “cost the American economy more than $100 billion.”

EPA’s Authority Questioned

Calling EPA’s move “an affront to both federalism and the separation of powers,” the coalition letter says the CPP “is unlawful and almost certain to be overturned” by the courts.

The letter continues, “EPA stretches the pertinent statutory authority, section 111 (d) of the Clean Air Act, beyond all recognition. This obscure, seldom-used provision was designed to set technology-based emissions standards for ’particular sources,’ aptly defined as ‘designated facilities’ in EPA’s 1974-1975 implementing regulations. In the CPP, EPA illicitly treats the entire electric power sector of a state as a ‘particular source’ and illicitly sets emissions standards based not on technologies specific to coal power plants but on the agency’s wish list for ‘green power’ policies.”

The fate of the CPP is uncertain, as the rule will likely be challenged in court, a process that can drag on for as much as two years. Furthermore, the new, Republican-controlled 114th Congress may attempt to block the regulation.

Jay Lehr, science director of The Heartland Institute, said, “The Obama effort to end coal energy in our country is an egregious attempt by his administration to make him a messiah to the greens. It sits on a crumbling foundation of falsehoods. First, that carbon dioxide is causing the planet to warm, which cannot be true as the temperature has been stable for 18 years while CO2 has continued to increase. Second, that CO2 is a pollutant, when we know life would not exist without it.

“There is no case of administrative overreach more deserving of resistance than this one.”

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